E. A. WILLIAMS (APPELLANT)
G. A. FEYISITAN (RESPONDENT)
(1964) All N.L.R. 575
Division: High Court, Lagos
Date of Judgment: 7th December, 1964
Case Number: LD/68A/1964
Before: Taylor, C.J.
The respondent claims to be the tenant of the appellant against whom the action is brought to recover the sum of £102. 5/- being unlawful increase in rent collected from the respondent between March 1949 to July 1960 on behalf of the appellant; the receipts, which did not bear the appellant's name, were tendered in proof of the plaintiff's case; it was shown in evidence that the property in question belongs to the estate of the appellant's father and that the appellant had on occasions held herself out as the landlady of the property; the rent collected in respect of the property was usually paid into the estate account in a bank by the rent collector.
Counsel for the appellant contended that since the rents are paid into the estate account, and not personally to the appellant, the appellant cannot be said to have received the rents as envisaged by section 7 of the Rent Restriction Act, Cap. 183.
(1) For the purposes of section 7 of the Rent Restriction Act, strict proof of ownership of the property is not essential in establishing the relationship of landlord and tenant or the liability of the landlord arising thereby.
(2) Since receipt does not mean or refer only to the physical act of deceiving in person, what is paid to my agent, on my holding out as the landlord and/or owner of the premises is payment to me and receipt by me. It is no less a receipt by me if my agent embezzles the sum or pays the sum into an estate account at least for the purposes of civil law as opposed to criminal law, for I would be estopped from making a further claim against the tenant in respect of the same sum.
Act referred to:-
Rent Restriction Act, Cap. 183, section 7.
Taylor, C.J. of Lagos:-The plaintiff/respondent sued the defendant/appellant on the 23rd August, 1961 for "the sum of £102. 5. 0d. being the amount of unlawful increase collected in rent in respect of the premises at No. 10 Catholic Mission Street, Lagos from March, 1949 to July 1960." The plaintiff at the material time claimed to be a tenant of the defendant. On a case stated by the Learned Magistrate on the 25th April, 1962, the learned Chief Justice of the High Court of Lagos, Sir Clement Nageon de Lestang on the 9th July, 1962 held that:
"(1) For these reasons I am of opinion that over-payment of rent made by a tenant to his landlord are recoverable by the tenant both during the tenancy and after he has given up possession on ceasing to be a tenant,
(2) Here the action is not founded on any contract outside the Act. It is an action which proceeds from the Act. It is based on a right which would not exist but for section 7 (of the Rent Restriction Act) of the Act and consequently it is in my view, founded on a specialty for which the period of limitation is twenty years."
On the 27th November, 1963 evidence was taken, receipts of rent were tendered in proof of the plaintiff's case, and at the close of the plaintiff's case, and evidence was adduced for the defence. The gist of the defence is contained in the following passages of the evidence of the defendant which read thus:-
"I know the property at 10 Catholic Mission Street, Lagos. It is owned by my late father. My father left his property at 10 Catholic Mission Street, Lagos, to all his children and grand-children and he stated this in his Will."
"Between 1936 and 1953 I was not in Lagos. I had travelled with my husband. It was in 1949 I went to England and returned in May, 1953."
And finally that:-
"The rent collector was paying the rent into the estate account in a Bank."
Under Cross-examination however she admitted that:-
(i) the late M.A.O. Williams, her husband collected the rent from the plaintiff on her behalf in 1949.
(ii) In 1936 the late A.O. Gomez also collected rent on her behalf.
(iii) She gave instructions to a solicitor to serve exhibit "B" on the plaintiff in which she was described as the landlady.
(iv) In exhibits A to H she is described as the landlady and in exhibit E as the owner of the premises, all on instructions given by her to her solicitor or other agent.
(v) In exhibits D to D2 she in fact sued the defendant in Suit No. 215/57 to recover possession of the premises.
After hearing the defence the trial Magistrate gave judgment in the plaintiff's favour that the unlawful increases were made, and that there was abundant evidence that the defendant held herself out as the plaintiff's landlady.
The defendant has appealed against this Judgment. Mr Okafor after raising the point as to the appellant not being the landlady or owner had later on to concede, on the overwhelming evidence before the court, some of which emanated from his own chambers, that the appellant held herself out as the respondent's landlady.
The only grounds that were pursued with any real show of enthusiasm were ground 2(a) and (c) the effect of which is as contended by Counsel that there was evidence to the effect that the rents or at least some of them were paid into the estate account, and not personally to the appellant. Therefore, urged Counsel, the appellant cannot be said to have "received" the rents as envisaged by section 7 of the Rent Restriction Act. This argument is of course fallacous for receipt does not mean or refer only to the physical act of receiving in person. What is paid to my agent, on my holding myself out as the landlord and/or owner of the premises is payment to me and receipt by me. It is no less a receipt by me if my agent embezzles the sum or pays the sum into an estate account, at least for the purposes of civil law as opposed to the criminal law, for I would be estopped from making a further claim against the tenant in respect of the same sum.
For these reasons I did not call on the respondent to reply. I now dismiss the appeal with costs which I assess at 10 guineas to the respondent.